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To Mel: While I appreciate and agree with the nuance you describe in your post, you fail to recognize the danger of a LAW is that CRIMINALIZES sex with a person who is “UNCONSCIOUS”.

To be absolutely clear, “qualifying unconscious rape as what it is (RAPE)” DOESABSOLUTELYMEAN “you are automatically a rapist for having sex with your drug-experimenting girlfriend”. That is precisely the problem with the law. If it doesn’t mean that, then what do you think it says?

Such a law entitles police and prosecutors to imprison you if you have sex with someone who is “unconscious” (however they define that). If you watch the news, I think you will have seen just how self-serving and indiscriminate police and prosecutors are.

So, while I appreciate your lecture on consent etc, it is irrelevant to a law that draws a bright line definition of “rape”. The problem is such a law would NOT operate with all the nuance your well-intentioned post suggests. It says RAPE = SEXWITHUNCONSCIOUSPARTNER. PERIOD. There’s no “except”. There’s no “unless”. There’s no “but if”.

Oh, and by the way, drugging a person and having sex with them fits well within current definitions of rape. It’s not like this poorly thought out law is necessary for victims to have a remedy.

Mel Austin commented
2015-08-10 22:20:58 -0400

To the previous poster: qualifying unconscious rape as what it is (RAPE), does not mean you are automatically a rapist for having sex with your drug-experimenting girlfriend. No one is saying that every form of consensual sex between two adults that involves a slightly altered mental state is now going to be illegal. Hordes of well-meaning, innocent people are not going to suddenly be prosecuted because of actions their partners were totally down with doing.
That being said; the person performing the action carries the responsibility for the commission of that action. That is across the board, regardless of how ‘easy’ another person made that action to accomplish (i.e. by getting drunk around you, being alone with you, dating you, etc). What does that mean exactly? It doesn’t mean you can never have sex with your chosen partner while one or both of you are under the influence of something. It simply means that you and your partner should be completely on the same page about what is permissible between the two of you, and that those rules (whatever they are) are followed by both of you. All. The. Time. Even bdsm fans have safety words…
Furthermore, no one else should have to draw the line of consciousness in the sand for you. To answer the previous commenter’s points: (i) Is there a question about whether or not the other person is conscious enough to consent? Don’t do it. (ii) Is there a clear line of communication between you and your partner that includes being 100% sure with what you’re about to do? If ‘No’- Don’t do it. (iii) The level between being able to consent or not while intoxicated varies with each person. There is no strict measure by which we can gage another person’s level of consciousness (though there are definitely guideposts, up to and including total lack of responsiveness to stimuli). Still- that makes it all difficult and grey-area’d sometimes, right? No. It doesn’t. Here is the answer- if you are unsure of whether or not the person you are with is too drunk/high/f’ed up to consent- Don’t. Do. It. (iv) The opinion of a legislator never enters the conversation if this statement is true: “Neither my girlfriend nor I would agree that our experimentation constituted “rape”.” – Then it WASN’T rape.
Look, this legislation is not a mechanism by which consenting, ‘experimenting’ partners are suddenly going to have their own agreed-upon sex acts used against them. It is a mechanism by which people who have been disabused of power over their own bodies can now seek legal recourse. In the end, if there is ever a question or doubt in your mind about whether or not what you are doing is wrong, or could be construed as wrong by the person you are with, simply don’t do it. You are not going to have your life destroyed by the consequences of an action you did not commit.
Seriously, as long as you and your lover are clear about what each of you wants in the relationship (however brief), this legislation does not affect you. If anyone suddenly hearing this is thinking about all the sex it means they will/should not be having in the future- lest their partner construe it as ‘unconscious rape’- then there is a larger problem here than how broadly this state statute is worded.

P.S. I apologize for breaking rule 3 of the guidelines, in that reading this post absolutely took up an inordinate amount of people’s time.

Samuel Iam commented
2015-08-09 22:46:21 -0400

First, it is shocking that a group of supposedly thoughtful and well-informed progressive-minded people no only do not subscribe to the New Yorker, not only do not read the New Yorker, but are not even aware that the New Yorker is a weekly magazine. That is just profoundly embarrassing.

Second, while I am accustomed to the Right Wing ranting in the most narrow and simplistic terms, I hope for some acknowledgment of nuance and complexity from the left. It is a simple-minded straw man to tear down legislators who are cautious about defining rape as sex with someone who is not conscious. Superficially the proposition sounds outrageous. Sadly, that’s where you stopped. There are several layers here. (i) What exactly does “conscious” mean? If you’re going to send someone to jail, brand them a sex offender, and destroy their life forever, that’s a definition worth considering carefully – do you trust the (decidedly poor) quality of intellect in state legislatures to produce a definition that is not overbroad? (ii) people these days take a lot of pills; what exactly constitutes conscious or unconscious is very hard to say when these things affect you. (iii) I personally was in a relationship with someone who was into pills, and also into exploring sexual activities in various states of consciousness; her idea, her invitation, issued beforehand in a state of complete lucidity over the course of a many-months live-in relationship. Beyond that, is one “conscious” if you’ve had a couple of drinks? A little weed? A tab of X? Do you propose to outlaw sex under any but the most lucid of conditions? Call it perverted if you like; just be prepared to brand a whole constellation of other sexual practices perverted as well, and be prepared to defend the line you draw. It will not be easy. Neither my girlfriend nor I would agree that our experimentation constituted “rape”; if you’ve ever had sex while “high”, are you a rapist? Which brings me to the most troubling aspect of this sort of legislation. (iv) Do we want legislatures, which are frequently even more hot-headed and less thoughtful and informed than podcast commentators, to dictate what is and is not permissible in our own bedrooms? With our own lovers? Between two consenting adults? This is an extraordinarily slippery slope. Not long ago sex in anything other than the missionary position with your spouse was illegal in some states. Shall we return to those days? if anyone, I would think that the Left would recognize the dangers here. It was very sad to see you lambast legislators who understood that there is a nuanced question here and one that is not so easy, simple, and obvious as your thoughtless righteous indignation suggests.